Background
Clive Palmer is the subject of criminal proceedings in the Queensland Magistrates Court. On 12 September 2025, the Magistrates Court referred questions of law to the Supreme Court under s 49(2) of the Human Rights Act 2019 (Qld) — a mechanism that allows courts to refer human rights questions to the Supreme Court and requires the referring court to stay its hand while the referral is “pending.” The referral was assigned to the Trial Division, and on 26 March 2026 Hindman J declined to answer the referred questions, ruling it was “inappropriate” to do so. That decision brought the referral process to an end at first instance.
Palmer then appealed Hindman J’s decision to the Court of Appeal (CA1574 of 2026). In the Magistrates Court, the parties fell into dispute about what followed: specifically, whether the referral remained “pending” under s 49(3) of the Act by reason of the appeal, thereby continuing to prohibit the Magistrates Court from advancing the criminal proceedings. Palmer filed an originating application in the Trial Division on 20 May 2026, seeking a declaration that the referral was still pending until the Court of Appeal resolved the appeal.
The respondents — the Commonwealth Director of Public Prosecutions, ASIC, and a third respondent — opposed the declaration. While they accepted the matter was not hypothetical, they argued that as a matter of statutory construction the Trial Division’s decision had already constituted “the Supreme Court’s decision on the question” under s 49(3)(b), so the referral was no longer pending regardless of the appeal.
The Court’s Holding
Kelly J dismissed the application and refused to make the declaration. The court held that once a judge of the Trial Division decides a question referred from a lower court under s 49(2), that decision is “the Supreme Court’s decision on the question” for the purposes of s 49(3)(b) of the Human Rights Act 2019. A litigant’s subsequent appeal to the Court of Appeal does not revive or extend the referral so as to render it “pending” again. The referral is a mechanism initiated by a court or tribunal, not by a party; an appeal is a separate proceeding initiated unilaterally by a litigant and is not properly characterised as part of the referral.
The court also rejected Palmer’s argument grounded in a “most compatible with human rights” construction. Kelly J observed that Palmer’s reading would produce anomalous results: the status of “the Supreme Court’s decision on the question” would fluctuate depending on whether a party happened to file an appeal, meaning the referral could oscillate between “pending” and “not pending” based on unilateral conduct. Such a construction was not to be preferred. The court noted that Palmer retains the ability to seek interlocutory relief in either the Magistrates Court or the Court of Appeal to manage any prejudice while his appeal is heard.
The court indicated it would hear the parties as to costs following dismissal of the originating application.
Key Takeaways
- A Trial Division decision on a question referred under s 49(2) of the Human Rights Act 2019 (Qld) constitutes “the Supreme Court’s decision on the question” under s 49(3)(b), ending the referral’s pending status — even if the decision is subsequently appealed.
- An appeal to the Court of Appeal is a separate proceeding initiated by a litigant, not a continuation of the court-initiated referral; it does not resurrect the s 49(3) stay obligation on the referring court.
- A statutory construction that would allow the “pending” status of a referral to vary based on a party’s unilateral decision to appeal was rejected as anomalous and inconsistent with the provision’s operation in practice.
- A party wishing to protect their position while a human rights referral appeal is on foot should seek interlocutory relief — not rely on the referral mechanism to automatically freeze the underlying proceedings.
Why It Matters
This decision clarifies a procedural question of real practical significance for Queensland’s human rights framework: the s 49 referral mechanism is a one-shot pause, not an indefinite hold. Once the Supreme Court (Trial Division) disposes of a referred question — even by declining to answer it — the referring court is free to proceed in accordance with that determination. Defendants who disagree with the Trial Division’s handling of a referral cannot use the act of appealing as a de facto second injunction against the lower court proceedings.
For practitioners in Queensland criminal and civil matters, the ruling signals that where a human rights referral is in play, swift interlocutory applications (in either the Court of Appeal or the referring court) are the appropriate tool to manage proceedings during an appeal, rather than relying on the s 49(3) standstill provision. The decision also underscores the courts’ resistance to constructions that would give litigants unilateral control over the procedural effect of a statutory mechanism designed to operate through judicial, not party, initiative.